Sebastian Hamm v Mary Mutheu Chege

2. Upon service of the Application upon the Respondent, the Respondent opposed the application through a Replying Affidavit sworn on 9th March, 2026. II. 3. The Appellant’s case The Appellant/ Applicant sought the following orders: a) Spent. b) Spent. c) That pending hearing and determination of the Appeal, this Honourable court be pleased to issue temporary injunction orders restraining the Respondent by herself, agents, representatives, proxies and/or any person acting under her instructions from selling, charging, alienating or in any way whatsoever deal the suit property known as KWALE/DIANI/S. S/2538. d) That costs of this application be in the cause 4. The application by the Appellant herein was premised on the grounds, testimonial facts, and averments contained in the 14 Paragraphed Supporting Affidavit of SEBASTIAN HAMM, the Appellant sworn and dated contemporaneously with the Notice of Motion. The Applicant averred, inter alia, as follows that:a. He was the bona fide proprietor of all that parcel of land title deed number KWALE/DIANI S.S/2538, having acquired the same RULING: ELC APPEAL NO. E004 OF 2026 Page 2 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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through transmission on 9th August, 2018 from his late father, Helmut Hamm. b. His late father married the Respondent herein on 21 st July, 2020, with whom he lived until his demise on 28 th April, 2023. Prior thereto, in the year 2018, the late father had transmitted the suit property to the Affiant as indicated in paragraph 2 above. Annexed in the affidavit and marked as “SH - 2(a) & (b)” were copies of the title and transfer documents. c. The Respondent filed Originating Summons, “ KWALE MELC (O.S) No. E003 of 2024 (Mary Mutheu Chege – Versus - Sebastian Hamm)” dated 10th July, 2024 and lodged on 12 th July, 2024 at the Senior Resident Magistrate’s Court at Kwale, seeking adverse possession orders. Annexed in the affidavit and marked as “SH - 3” were copies of the Originating Summons dated 10 th July, 2024 and Supporting Affidavit dated 9th June, 2024. d. He was not served with the Summons to enter Appearance or the pleadings of the said case, hence he did not have the opportunity to defend the matter. Consequently, an ex - parte and/or irregular judgment was delivered in favour of the RULING: ELC APPEAL NO. E004 OF 2026 Page 3 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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Respondent on 23rd September, 2024. Annexed in the affidavit and marked as “SH – 4” was a copy of the Judgment. e. He was advised by his Advocate on record, advice which he verily believed to be true, that the Judgment by Hon. C.K. Auka in Kwale MELC (O.S) No. E003 of 2024 was an illegality for reasons that: i) The Magistrate’s Court from which the said Judgment emanated did not have jurisdiction to grant adverse possession orders, which jurisdiction is restricted to the High Court and Environment and Land Court. The provision of Section 38 of the Limitation of Actions Act, Cap. 22 provides: “Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.” ii) The suit property, KWALE/DIANI S.S/2538, was transferred to the Affiant in year 2018, and the Respondent filed suit in the year 2024 barely five ( 5 ) years later, when the RULING: ELC APPEAL NO. E004 OF 2026 Page 4 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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statutory period of 12 years required for adverse possession had not lapsed. iii) The Honourable Court did not have pecuniary jurisdiction to entertain the suit as bound by provision of Section 7(d) of the Magistrates’ Courts Act, 2015, which limits jurisdiction to suits not exceeding a sum of Kenya Shillings Seven Million Kshs. 7, 000, 000/=) in value. The Affiant attached photographs showing developments on the prime property, including a housed parking lot, palatial mansion, state-of-the-art garden, and swimming pool on a quarteracre near Diani Beach. On face value, the market value of the property obviously exceeded a sum of Kenya Shillings seven million (Kshs. 7, 000, 000/=). f. The Affiant stated that the Respondent alleged in the aforementioned case that she had been in occupation of the suit property since the year 2010, yet the title deed was issued to his father, Helmut Hamm, on 6 th March, 2012, who later transmitted the same to the Affiant, with a title deed issued in his name on 9th August, 2018. RULING: ELC APPEAL NO. E004 OF 2026 Page 5 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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g. Upon realizing that the Respondent had acquired the suit property based on an illegality, he instructed his advocates on record, the Law firm of Messrs. Luvuno Lung’anzi & Co. Advocates, to file an application to set aside the irregular Judgment to enable him to defend the case. However, the Learned Magistrate indicated that she did not have jurisdiction to entertain the application, vide a ruling delivered on 7 th January, 2026. Annexed in the affidavit and marked as “SH – 5” was a copy of the ruling. h. The Affiant deponed that he was advised by his advocate on record, advice which he believed to be true, that in declining to allow the application, the Learned Magistrate failed to appreciate that the application only sought to set aside the irregular Judgment but not to review it. i. He had since filed a Memorandum of Appeal dated 8 th January, 2026, seeking to appeal against the ruling of Hon. L.T. Lewa delivered on 7th January, 2026. Annexed in the affidavit and marked as “SH (a) and (b)” were copies of the Memorandum of Appeal and receipt of payment of the appeal. RULING: ELC APPEAL NO. E004 OF 2026 Page 6 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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j. It had come to his knowledge that the Respondent was keen to dispose of the suit property, KWALE/DIANI S.S/2538, to third parties. k. It was fair and in the interest of the administration of justice that this Honourable Court exercised its unfettered discretion in his favour by granting the orders sought in the application. l. He made the affidavit in support of the Notice of Motion application filed together therewith, seeking that this Honourable Court issue an injunction against the Respondent pending hearing and determination of the application and the suit. m. What was stated hereinabove was true to the best of his knowledge and belief, save as to advice or information the source whereof had duly been disclosed. III. 5. The Replying affidavit by the Respondent The Respondent opposed the Notice of Motion application through an 18 Paragraphed Replying Affidavit sworn on 9 th March, 2026 by MARY MUTHEU CHEGE, the Respondent herein wherein the Affiant averred that:- RULING: ELC APPEAL NO. E004 OF 2026 Page 7 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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a. This Honourable Court on 15th January, 2026 had granted the injunctive orders as prayed, restraining the Respondent from interfering with or dealing with the property known as LR NO. KWALE/DIANI S.S/2538 pending the hearing and determination of the application. b. The said injunctive orders as prayed had been issued ex parte and without the Court having the benefit of hearing the Respondent’s position on the matter. c. Th injunctive orders as prayed had the effect of restraining the Respondent from dealing with property that had already been declared by a competent court to belong to the Respondent. d. The dispute between the parties had previously been determined in “Kwale CMELC No. E003 of 2024 (O.S)” where the Court delivered Judgment on 23rd September, 2024. e. The said Judgment the Honourable Court had found that the Respondent had acquired the suit property through adverse possession, having been in open, continuous, and uninterrupted possession of the property for a period exceeding twelve (12) years. RULING: ELC APPEAL NO. E004 OF 2026 Page 8 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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f. The said judgment had granted the Respondent proprietary rights over the property and directed that the Respondent be registered as the proprietor of the said land. g. After the Judgment was delivered, the Appellant filed an application seeking to set aside the Judgment before the Magistrate’s Court. h. By the time the said application was being considered, the Magistrate’s Court no longer had jurisdiction to entertain matters relating to adverse possession. i. Consequently, in a ruling delivered on 7 th January, 2026, the Learned Senior Principal Magistrate correctly found that the Court lacked jurisdiction to entertain the application and therefore declined to proceed further. j. The Appellant had thereafter filed the present appeal challenging the said ruling, i.e., challenging the decision of the Court for being “functus officio” as well as lacking jurisdiction. k. The appeal filed by the Appellant had no chances of success since the Learned Magistrate merely applied the settled legal RULING: ELC APPEAL NO. E004 OF 2026 Page 9 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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principle that once a Court determines it lacks jurisdiction, it must down its tools. l. Further, the Appellant had failed to establish any prima facie case, the suit property having already been declared to belong to the Respondent through adverse possession. m. The Appellant therefore had no legal right capable of protection through the injunctive orders as prayed and further, the injunctive orders sought to stop the current registered owner, the Respondent in the appeal, from enjoying the use of the suit property that she was now the registered owner. n. The injunctive orders as prayed unjustly restrained the Respondent from dealing with property which had already been declared to belong to the Respondent by a Court of law. o. The continued existence of the injunctive orders as prayed served no legal purpose and only operated to prejudice the Respondent’s proprietary rights. p. It was therefore in the interest of justice that the injunctive orders as prayed and granted on 15th January, 2026 be quashed and/or set aside. RULING: ELC APPEAL NO. E004 OF 2026 Page 10 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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q. What was set out hereinabove was true to the best of her knowledge, information, and belief. IV. 6. Submissions On 13th July, 2026, while all the parties were present in Court, the Court directed that the Notice of Motion application dated 13 th January, 2026 be canvassed by way of written submission. 7. Pursuant to that all the parties obliged and a ruling date was reserved on 22nd September, 2026 by Court accordingly. V. 8. Analysis and Determination I have carefully considered the Notice of Motion application dated 13th January, 2026, together with the affidavits sworn by Sebastian Hamm and Mary Mutheu Chege, and the written submissions filed by both parties. Having reviewed the pleadings, affidavits, and authorities cited, the relevant provision of the Constitution of Kenya, 2010 and the Statures. 9. In order to reach an informed, Equitable and Reasonable decision, the Court is of the view that the following four ( 4 ) key issues arise for its determination: a) Whether the Appellant/Applicant has demonstrated a direct and identifiable legal interest in the suit property, LR No. RULING: ELC APPEAL NO. E004 OF 2026 Page 11 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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KWALE/DIANI S.S/2538, sufficient to warrant protection pending appeal. b) Whether the injunctive relief sought is necessary to preserve the subject matter of the dispute and ensure complete adjudication of the appeal. c) Whether the continued injunctive orders would occasion prejudice or undue delay to the Respondent, who asserts proprietary rights under the judgment of Kwale CMELC No. E003 of 2024. d) Who should bear the costs of the present application. ISSUE No. a). Whether the Appellant/Applicant has demonstrated a direct and identifiable legal interest in the suit property, LR No. KWALE/DIANI S.S/2538, sufficient to warrant protection pending appeal. 10. Under this sub-title, the Honourable Court shall examine whether the Appellant/Applicant has demonstrated a direct and identifiable legal interest in the suit property, LR No. KWALE/DIANI S.S/2538, sufficient to warrant protection pending appeal. The Appellant/Applicant places before the Court documentary evidence showing that the suit property was transmitted to him by his late father, Helmut Hamm, on 9th August, 2018, and a title deed was subsequently issued in his name. By virtue of that registration, the Appellant acquired proprietary rights recognized under the provision of Article 40 ( 1 ) & ( 2 ) of the Constitution of Kenya, RULING: ELC APPEAL NO. E004 OF 2026 Page 12 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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2010, Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012. 11. The provision of Article 40 ( 1 ) & ( 2 ) of Constitution of Kenya, 2010 provides:40.(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property(a) of any description; and (b) in any part of Kenya. (2) Parliament shall not enact a law that permits the State or any person(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or....... (6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired”. 12. Section 24 (a) stipulates that: “Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.” 13. The provision of Order 40 Rule 6 (6) of the Civil Procedure Rules, 2010 provides that:“Notwithstanding anything contained in sub-rule [1] of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it RULING: ELC APPEAL NO. E004 OF 2026 Page 13 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.” 14. Further, the Application is premised on the provision of Sections 1A, 3A and 3B of the Civil Procedure Act, Cap. 21. Though Section 3B does not exist, the other sections of law deal with Overriding Objective of the Act, and the inherent power of the court to issue orders that are necessary for the end of justice to be met. 15. This statutory provision has been consistently interpreted by Kenyan courts to mean that once a person is registered as proprietor, their interest is indefeasible except as provided under the law. In the case of:- “Dr. Joseph Arap Ngok – Versus - Justice Moijo Ole Keiwua & 5 Others [1997] eKLR” , the Court of Appeal underscored that title to land is sacrosanct and can only be challenged on grounds recognized by statute. Thus, the Appellant’s registration in the year 2018 prima facie conferred upon him a direct and identifiable legal interest in the property. 16. However, the Respondent, relied on the Judgment delivered in Kwale CMELC No. E003 of 2024 (O.S), wherein she was declared to have acquired the property through a claim of land adverse possession. The Appellant challenged that Judgment on jurisdictional grounds, citing the provision of Section 38 of the RULING: ELC APPEAL NO. E004 OF 2026 Page 14 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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Limitation of Actions Act, Cap. 22, which expressly provides that claims for adverse possession must be instituted in the High Court (and by extension the Environment and Land Court) and certainly not the lower or sub – ordinate courts. In the case of:- “Kweyu – Versus - Omuto [1990] KLR 709” , the Court of Appeal affirmed that sub - ordinate courts lack jurisdiction to entertain adverse possession claims, holding that jurisdiction is a creature of statute and cannot be conferred by consent or acquiescence. 17. Further, the Appellant demonstrated that the Respondent’s claim was filed in the year 2024, barely five ( 5 ) years after the property had been transmitted to him, falling short of the statutory twelve (12) years period required under the provision of Section 7 of the Limitation of Actions Act, Cap. 22 which provides that: “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him…” 18. The Court in the case of:- “Mbira – Versus - Gachuhi [2002] 1 E.A. 137” emphasized that adverse possession requires proof of open, continuous, and uninterrupted occupation for at least twelve years. The Respondent’s claim, therefore, was premature and incapable of vesting proprietary rights in her favour. RULING: ELC APPEAL NO. E004 OF 2026 Page 15 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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19. The Court also notes that the property in question is of considerable value, being developed with a mansion, swimming pool, and landscaped gardens in close proximity to Diani Beach. This fact underscores the importance of preserving the property pending appeal, as any alienation or disposal would irreversibly prejudice the Appellant’s rights and render the appeal nugatory. 20. On the basis of these facts and authorities, the Court is satisfied that the Appellant had established a direct and identifiable legal interest in the suit property. That interest, though contested, was sufficient to warrant preservation pending appeal. Guided by the principle in the now ‘classicus locus’ case of:- “Giella – Versus - Cassman Brown & Co. Ltd [1973] EA 358” , the Court reiterated that where a party demonstrates a prima facie case with a probability of success, injunctive relief may issue to safeguard the subject matter until final determination. 21. The Court therefore concludes that the Appellant’s interest in the property is not speculative but legally recognizable. Preservation of the suit property is necessary to ensure that the appeal is not rendered nugatory, and to uphold the constitutional guarantee under the provision of Articles 25 ( c ), 47 and 50 (1) & ( 2 ) of the RULING: ELC APPEAL NO. E004 OF 2026 Page 16 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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Constitution of Kenya, 2010, which secures the right to a fair hearing for parties with demonstrable interests in proceedings affecting their rights. 22. By and large, therefore, this Court is fully satisfied that the Appellant has met the threshold of demonstrating a direct and identifiable legal interest warranting protection. ISSUE No. b). Whether the injunctive relief sought is necessary to preserve the subject matter of the dispute and ensure complete adjudication of the appeal. 23. Under this sub-title, the Honourable Court shall examine whether the injunctive relief sought is necessary to preserve the subject matter of the dispute and ensure complete adjudication of the appeal. The jurisprudential foundation of interlocutory injunctions rests on the principle that litigation must not be reduced to a hollow or academic exercise. Courts are duty-bound to safeguard the substratum of the dispute so that the appellate process retains meaning and efficacy. The provision of Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010 expressly provides that no order for stay or injunction shall be made unless the Court is satisfied that substantial loss may result to the applicant unless the order is RULING: ELC APPEAL NO. E004 OF 2026 Page 17 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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granted. The law with respect to stay of execution pending appeal is found in the provision of Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules, 2010 which provides as follows: “(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the Court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under sub rule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” 24. Preservation of the subject matter is therefore both a statutory requirement and an equitable safeguard designed to prevent injustice. In the case of:- “Vishram Ravji Halai – Versus - Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365” , the RULING: ELC APPEAL NO. E004 OF 2026 Page 18 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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Court of Appeal, discussing the High Court’s [read ELC’s] jurisdiction under this Order stated: “The Superior Court’s discretion to order a stay of execution of its order or decree is fettered by three conditions. Firstly, the applicant must establish a sufficient cause, secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay and thirdly the applicant must furnish security. The application must of course be made without unreasonable delay.” 25. The guiding principles were laid down in the seminal case of “Giella – Versus - Cassman Brown (Supra)” , on the grant of injunctive reliefs. The case outlines the conditions for granting a temporary injunction. These principles are:“first the applicant must show a prima facie case with a probability of success; secondly, an interlocutory injunction will not normally be granted unless it is shown that the applicant would otherwise suffer an irreparable injury which could not adequately be compensated in damages; and thirdly, that if the Court is in doubt as to the existence or otherwise of a prima facie case, it should decide the application on a balance of convenience.” 26. Further, these principles have been consistently reaffirmed, notably in the case of:- “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others [2014] eKLR”, where the Court of Appeal emphasized that interlocutory injunctions are not about granting RULING: ELC APPEAL NO. E004 OF 2026 Page 19 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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victory to one party but about preventing irreparable prejudice pending trial or appeal. 27. Courts have variously held that the essence of injunction pending appeal is to ensure fairness and prevent a successful Appeal from being undermined by actions taken while the Appeal is ongoing, and thus render the outcome of such appeal pointless. See the case of “Julius Musili Kyunga – Versus - Kenya Commercial Bank Limited & Another [2012] eKLR”, where the court held that:“The object of the injunction pending appeal is to preserve the subject matter to ensure that the appeal, if successful, will not be rendered nugatory.” 28. In the case of “Patricia Njeri and 3 Others – Versus - National Museum of Kenya [2004] eKLR” , which cited with approval as the decision in the case of “Timothy Kisina Kithokoi – Versus - Elijah Kitele and Another [2022] eKLR” , the court set out the principles to be considered in an Application for injunction pending Appeal as follows; “ a. an order of injunction pending appeal is a discretionary which will be exercised against an applicant whose appeal is frivolous. b. The discretion should be refused where it would inflict greater hardship that it would avoid. RULING: ELC APPEAL NO. E004 OF 2026 Page 20 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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c. The applicant must show that to refuse the injunction would render the appeal nugatory. d. The court should also be guided by the principles of Giella v Cassman Brown [1973] EA 358.” 29. Similarly, in the case of “Madhupapper International Limited – Versus - Kerr [1985] KLR 840”, the court held that it would be wrong to grant a temporary injunction pending appeal where the appeal is frivolous or whether the injunction would inflict greater injustice that it would avoid. And in the case of “Kenya Commercial Bank Ltd – Versus - Nicholas Ombija”, the court held that an arguable appeal is not one which must necessarily succeed but one which ought to be argued fully in court. Being guided as above, the court will proceed to determine whether the applicant has established the above principles, and whether he is deserving of the orders sought. It is clear that at this juncture, the court is dealing with an interlocutory application and not the main Appeal. 30. The Appellant asserts that unless restrained, the Respondent may dispose of LR No. KWALE/DIANI S.S/2538 to third parties. Alienation of the property would irreversibly prejudice the Appellant’s rights and render the appeal nugatory. The Court is guided by the reasoning in case of:- “Kariuki – Versus - Ngaruiya [2026] KEELC RULING: ELC APPEAL NO. E004 OF 2026 Page 21 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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2221”, where it was held that preservation of immovable property is paramount because once land is sold or transferred, restoration is impossible and damages cannot adequately compensate the aggrieved party. Land, unlike movable assets, carries unique sentimental, economic, and social value, and its alienation often results in irreparable harm. 31. The Respondent contends that injunctive orders unjustly restrain her enjoyment of property already declared hers through adverse possession. However, the Court notes that the legality of that judgment is the very subject of appeal. To permit disposal of the property before the appellate Court pronounces itself would undermine the constitutional right of appeal guaranteed under the provision of Articles 25 ( c ), 47 and 50 (1) & ( 2 ) of the Constitution of Kenya, 2010, which secures the right to a fair hearing. The Court must therefore ensure that the appeal is not rendered illusory by premature alienation of the property. 32. The Court also recalls the decision in the case of:- “Sitienei – Versus - Kiago [2026] KEELC 2212”, where it was held that preservation of property pending appeal is necessary but must be accompanied by conditions to mitigate prejudice to the successful litigant. Such RULING: ELC APPEAL NO. E004 OF 2026 Page 22 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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conditions may include provision of security or undertakings against waste. This approach balances the interests of both parties: the Appellant’s right to pursue an appeal without fear of losing the subject matter, and the Respondent’s right not to suffer undue deprivation of enjoyment of property. 33. In addition, the Court is mindful of the equitable maxim that equity will not suffer a wrong to be without a remedy. If the Respondent were allowed to alienate the property before the appeal is heard, the Appellant’s statutory right of appeal would be rendered nugatory, and the Court would be left without an effective remedy. Preservation of the subject matter ensures that the appellate jurisdiction of this Court is exercised meaningfully and not in vain. 34. In light of these authorities and statutory provisions, the Court is persuaded that injunctive relief is necessary to preserve the suit property. Preservation maintains the status quo, ensures that the appellate process remains meaningful, and prevents the appeal from being rendered nugatory. 35. Thus, the Court discerns that injunctive relief sought by the Appellants/Applicants is not only justifiable, entitled but also RULING: ELC APPEAL NO. E004 OF 2026 Page 23 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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essential to ensure complete adjudication of the appeal and to uphold the integrity of the judicial process. ISSUE No. c). Whether the continued injunctive orders would occasion prejudice or undue delay to the Respondent, who asserts proprietary rights under the judgment of Kwale CMELC No. E003 of 2024. 36. Under this sub-title, the Honourable Court shall examine whether the continued injunctive orders would occasion prejudice or undue delay to the Respondent, who asserts proprietary rights under the Judgment of “Kwale CMELC No. E003 of 2024 ”. The Respondent contends that the injunctive orders presently in force restrain her from dealing with property which has already been declared to belong to her by a competent court. She relies on the judgment delivered on 23rd September, 2024 in “Kwale CMELC No. E003 of 2024 (O.S)”, wherein the Court found that she had acquired the suit property through adverse possession, having been in open, continuous, and uninterrupted occupation for over twelve years. The said Judgment directed that she be registered as proprietor of the land, thereby vesting in her proprietary rights which she now claims are unjustly curtailed by the injunctive orders. RULING: ELC APPEAL NO. E004 OF 2026 Page 24 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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37. In the case of:- “Bilha Mideva Buluku – Versus - Everlyne Kanyere [2016] eKLR”, Mwita J. stated as follows concerning injunctions pending appeal:“Even though the court is dealing with an application for injunction at appeal stage, the court would have to be satisfied that the applicant has made a case in terms of Giella – Versus Casman Brown 1973 EA 358, that he has a prima facie case with a probability of success, that he will suffer irreparable damage which cannot be compensated by an award of damages or that if in doubt the court should decide the case on a balance of convenience. The court should at the same time bear in mind that there is an appeal pending and therefore consider the prospects of that appeal succeeding in order to determine whether an applicant has a prima facie case, the ultimate objective of course being to safe guard rights of the appellant in the appeal.” 38. The Court acknowledges that injunctive relief, by its very nature, restricts the enjoyment of proprietary rights. In the case of:“Kenya Breweries Ltd – Versus - Washington Okeyo [2002] eKLR” , the Court of Appeal emphasized that injunctions are equitable remedies which must be exercised cautiously, bearing in mind the rights of the party against whom they are issued. Similarly, in the case of:- “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others [2014] eKLR”, the Court of Appeal reiterated that interlocutory injunctions are not intended to punish a party but to preserve the RULING: ELC APPEAL NO. E004 OF 2026 Page 25 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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subject matter pending determination. The jurisprudence therefore requires a delicate balancing act between safeguarding the substratum of the appeal and avoiding oppressive restraint upon a party who has already obtained judgment in her favour. 39. The prejudice to the Respondent is not merely theoretical. She is restrained from exercising rights of ownership over property which she claims to have lawfully acquired. She is unable to sell, lease, or otherwise enjoy the economic and social benefits of the property. This restriction interferes with her proprietary autonomy, a right protected under the provision of Article 40 of the Constitution of Kenya, 2010, which guarantees the right to acquire and own property of any description. Yet, the Court must weigh this prejudice against the Appellant’s constitutional right of appeal under the provision of Articles 25 ( c ), 47 and 50 (1) & ( 2 ) of the Constitution of Kenya, 2010, which secures the right to a fair hearing. 40. What arises from the foregoing is that the grant of orders of stay of execution are subject to the court’s discretion, the court in this respect being guided by the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010. The question of how the court should RULING: ELC APPEAL NO. E004 OF 2026 Page 26 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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exercise this discretion was extensively discussed by the Court of Appeal in the case of:- “Butt – Versus - Rent Restriction Tribunal [1982] KLR 417”, the Court of Appeal held that the right of appeal must not be rendered nugatory, and preservation of the subject matter is essential to ensure meaningful adjudication. If the property were alienated before the appeal is heard, the appellate jurisdiction of this Court would be rendered futile. Thus, while the Respondent suffers restriction, the Court must ensure that the appeal remains alive and effective. In the case the Court held that: “1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. 2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion. 3. A Judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings. 4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal. RULING: ELC APPEAL NO. E004 OF 2026 Page 27 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.” 41. By doing so, this court would in essence have dealt with the merit of the Appeal, at the interlocutory stage, thus jeopardizing the outcome of the said appeal before the same is heard inter parties. The discretion of the court to grant injunction pending appeal has to be exercised judiciously. See the case of “Samka Ltd and Another – Versus - Mercedes Sachez Rau Tussel Civil Application Nairobi No 21 of 1999 [Gicheru, Omollo and Owuor JJJA on 19 July 1999]” , held as follows: “Discretion must be exercised on reason and not caprice and the exercise must not be arbitrary or oppressive even if unfettered.” 42. The primary purpose of injunction pending Appeal is to preserve the suit property. There is no danger of alienation of the suit property by the Respondent herein to warrant preservation of the said suit property. Further to the above, this court is now enjoined to give effect to the overriding objectives in the exercise of its powers as expressed in the provision of Section 3 of the Environment and Land Court Act, No. 19 of 2011 and Sections 1, 1A & 3 of the Civil Procedure Act, Cap. 21 to wit, the just, RULING: ELC APPEAL NO. E004 OF 2026 Page 28 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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expeditious, proportionate and affordable resolution of disputes. The Court is so guided. 43. The Court further notes that undue delay may arise if injunctive orders are maintained indefinitely without expeditious prosecution of the appeal. In the case of:- “Mrao Limited – Versus - First American Bank of Kenya Ltd [2003] KLR 125” , the Court emphasized that interlocutory relief must not be used oppressively or to stall proceedings. The Court further held that: “A prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of success of the Applicant’s case upon trial. That is clearly a standard which is higher that an arguable case.” 44. Further, the burden of proving a “prima facie” case lies with the Appellant/Applicant herein. The Court of Appeal in the case of “Nguruman Limited – Versus - Jan Bonde Nielsen and 2 others (Supra)”, held that: “….The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion.” RULING: ELC APPEAL NO. E004 OF 2026 Page 29 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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45. On whether the Appellant will suffer irreparable loss which cannot be compensated by an award of damages, this court finds and holds that irreparable loss refers to a type of damage or injury that cannot be adequately compensated for by monetary damages or remedied through financial compensation. Further, it signifies harm that is so severe or unique that no amount of money can restore the injured party to their previous state. 46. In the case of “JM – Versus - SMK & 4 others [2022] eKLR” , the court defined irreparable loss as follows:“The equitable remedy of temporary injunction is issued to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstratable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which the mount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation of whatever amount will never adequately remedy”. 47. The equitable maxim that “delay defeats equity” applies with equal force here. Therefore, while injunctive orders may occasion some prejudice to the Respondent, such prejudice can be mitigated by imposing conditions—such as requiring the Appellant to furnish security, file an undertaking as to damages, or prosecute the appeal within a specified timeframe. RULING: ELC APPEAL NO. E004 OF 2026 Page 30 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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48. The Court of Appeal in the case of “Charter House Investments Ltd – Versus - Simon K. Sang & 3 Others [2010] eKLR” , held as follows: “Injunction is an equitable and discretionary remedy, given when the subject matter of the case before the Court requires protection and maintenance of the status quo. The award of a temporary injunction by Courts of equity has never been regarded as a matter of right even where irreparable injury is likely to result to the Applicant. It is a matter of sound judicial discretion, in the exercise of which the Court balances the convenience of the parties and possible injuries to them and to third parties.” 49. The Court is also guided by the provision of Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, which requires an applicant seeking stay or injunctive relief pending appeal to demonstrate that substantial loss may result unless the order is granted, the application was brought without undue delay and to provide security for the due performance of the decree. These statutory safeguards ensure that the Respondent is not left uncompensated should the appeal ultimately fail. 50. Balancing these considerations, the Court finds that although the Respondent suffers restriction in enjoyment of her declared proprietary rights, the prejudice is not undue if the appeal is prosecuted diligently and appropriate conditions are imposed. RULING: ELC APPEAL NO. E004 OF 2026 Page 31 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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Preservation of the property remains necessary to avoid rendering the appellate process nugatory. Equity demands that both parties’ interests be safeguarded, and the Respondent’s prejudice can be alleviated through conditions attached to the injunctive orders, thereby ensuring fairness, proportionality, and the integrity of the judicial process. ISSUE No. d). Who should bear the costs of the present application. 51. Under this sub–title, the main issue herein is who should bear the costs of the present application. It is now well established that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of legal action or proceedings in any litigation process. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 establishes the general principle that costs follow the event unless the Court, for good reason, orders otherwise. By the event it means the results or outcome of the said legal action. Section 27 (2) further provides: “The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.” 52. This provision empowers the Court not only to award costs but also to grant interest on those costs, subject to a ceiling of 14% per RULING: ELC APPEAL NO. E004 OF 2026 Page 32 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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annum. It is a recognition that costs are not merely compensatory but also restorative, ensuring that a successful litigant is not disadvantaged by the time taken to recover expenses incurred in litigation. 53. In the case of:- “Jasbir Singh Rai & 3 others – Versus - Tarlochan Singh Rai & 4 others [Supra]” , where the Supreme Court emphasized that costs are a natural consequence of litigation and should ordinarily be borne by the party whose conduct necessitated judicial intervention. 54. In the present application, the Appellant seeks injunctive relief pending appeal, while the Respondent opposes the same on grounds that she already holds a judgment in her favour. The Court notes that the application raises serious jurisdictional questions regarding the competence of the Magistrate’s Court to grant adverse possession orders. These questions are not frivolous and warrant determination on appeal. The injunctive orders sought are therefore necessary to preserve the subject matter, but they also occasion some prejudice to the Respondent, who is restrained from enjoying proprietary rights declared in her favour. RULING: ELC APPEAL NO. E004 OF 2026 Page 33 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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55. Given that the application is interlocutory in nature and the substantive appeal is yet to be determined, the Court finds it just and equitable that costs of the present application be in the cause. This ensures that whichever party succeeds in the appeal will be entitled to recover costs, while neither party is unfairly burdened at this interlocutory stage. VI. Conclusion and Disposition 56. In long analysis, this Honourable Court has carefully considered and weighed the interests of the parties, the affidavits and annexures filed, the submissions of Counsel, the applicable statutory framework, and the judicial authorities cited. In a nutshell, I proceed to order the following: – a) THAT the Honourable Court finds that the Notice of Motion application dated 13th January, 2026 by the Appellant/Applicant be and is hereby meritorious and thus allowed. b) THAT the injunctive relief sought is hereby confirmed to preserve the suit property LR No. KWALE/DIANI S.S/2538 pending the hearing and determination of the appeal. c) THAT the Honourable Court further finds that the Appellant/Applicant has demonstrated a direct and RULING: ELC APPEAL NO. E004 OF 2026 Page 34 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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identifiable legal interest in the suit property, sufficient to warrant protection, and that preservation of the subject matter is necessary to ensure complete adjudication of the appeal. d) THAT while the Respondent asserts proprietary rights under the Judgment of the Civil case “Kwale CMELC No. E003 of 2024”, the Court holds that the continued injunctive orders will not occasion undue prejudice or delay, provided that the Appellant prosecutes the appeal expeditiously. The Respondent retains full liberty to respond to the appeal and to contest the Appellant’s claims. e) THAT the injunctive orders shall remain in force until the final determination of the appeal, subject to the Appellant filing and prosecuting the appeal WITHIN THE NEXT TWENTY ONE (21) DAYS from the date of this Ruling. There be a mention on 26 th October, 2026 for the Admission and taking direction on the disposal of the appeal pursuant to the provision of Section 79B of the Civil Procedure Act, cap. 21 and Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010. f) THAT costs of the present application shall be in the cause, to abide the outcome of the appeal. IT IS SO ORDERED ACCORDINGLY. RULING: ELC APPEAL NO. E004 OF 2026 Page 35 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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RULING DELIEVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……..22 ND ..……DAY OF ………SEPTEMBER…..……..……..2026. ……………………………………. HON. MR. JUSTICE L. L. NAIKUNI ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of: a. M/s. Daniel Disii, Court Assistant. b. Mr. Kamau & Mr. Gambo Advocates for the Appellant/Applicant. c. Mr. Nyariki & Mr. Mac Kowade Advocates for the Respondents. RULING: ELC APPEAL NO. E004 OF 2026 Page 36 of 36 HON. JUSTICE LL NAIKUINI (ELC JUDGE)

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